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The Elusive Concept of Stop & Frisk

One of the basic precepts at SJ is to try not to make anyone stupider for reading. Sadly, in selecting and publishing the positions of some pundits at Room for Debate, the New York Times has shown no regard for this rule. While the journalistic credo is that there are two sides (and often more) to every story, that doesn’t mean every point of view is sufficiently valid to warrant airing.

How can the next mayor move beyond this controversy and set priorities for fighting crime and criminal justice in the city?

Not surprisingly, the response sought to rationalize the merit of Police Commissioner Ray Kelly’s baby. In the process, stop and frisk as a legal concept versus the New York City program of the same name was completely muddled. Indeed, much of the discussion of stop and frisk has reflected such confusion. By doing so, it reinforced the ignorance of those who can’t distinguish between what the law requires and an unconstitutional police initiative.

The worst offender was Heather MacDonald of the Manhattan Institute, a conservative libertarian think tank.

Figuring out how to respond to crime patterns and community requests for assistance while also satisfying [Judge Shira Scheindlin’s] order is going to be the hardest challenge facing the N.Y.P.D. in the coming years. Since her ruling seems to require that the department’s stop activity match the city’s population ratios rather than the incidence of crime, it may well force the agency to stop targeting high crime areas — unless the newly appointed monitor provides some statistical wiggle room.

It’s rather astounding that any publication, no less the Times, would publish such a nonsensical assertion. There is nothing about the order that “seems to require” that “stop activity match the city’s population ratios rather than the incidence of crime.” Stop activity, as she calls it, needs to match one thing, and one thing only: that every stop be based upon an articulable reasonable suspicion, as Terry v. Ohio requires. It doesn’t need to match or not match anything, though if done in accordance with law, statistics over time will bear out the propriety of stops and the validity of the methodology.

In other words, while the stats are helpful to show just how awful this program was, how mind-bogglingly disconnected it was from what the law required while simultaneously dumping its unconstitutionality on minorities, there was nothing about the order that suggests statistics drive the program. Stats are a by-product, nothing more.

But why do seemingly intelligent people find it difficult, no, impossible, to grasp that when nearly 90% of the stops result in nothing, the cops aren’t following the law but just stopping people, whether at random or because they don’t care for the hoodie they’re wearing? It isn’t possible. Rather, an argument like that made by MacDonald isn’t merely a product of confusion about the meaning of the order in tandem with ignorance of the law, but propaganda.

It seeks to perpetuate the misunderstanding, popular with groundling conservatives, that neighborhoods of color are where the crime happens, and therefore it’s only “common sense” that the police should disproportionately stop and frisk black and Hispanics. It’s not that the cops are targeting minorities, the argument goes, but that minorities commit all the crimes. It’s the Willie Sutton theory of law enforcement.

But that is not why the program was held unconstitutional, and the Times should be ashamed of itself for providing room for such drivel. The split isn’t just a matter of whites and blacks, but innocent and people for whom a lawful justification to stop exists. Here’s the shocker: just because some teen is black or Hispanic doesn’t make him suspicious and, thus, subject to stop and frisk at will. That was the offense Judge Scheindlin ruled unconstitutional. Get it?

In other words, these stops wouldn’t be unconstitutional under the Fourth Amendment it they were all based on an articulable reasonable suspicion, even if it turned out that the individuals stopped were disproportionately minority. But if that were the case, then it would be statistically anticipated that the stops would produce an 80% rate of arrest or seizure rather than the 10% obtained under the City program.

A different, but similarly misguided argument, was offered by Maria Haberfeld, chairwoman of the Department of Law, Police Science and Criminal Justice Administration at John Jay Cop College.

Stop, question and frisk can still be used aggressively, but with integrity and fairness, if the police fundamentally revamp the way they recruit, select, train, supervise and discipline officers.

An officer needs to decide whom to stop based on a number of cues and intuition, in addition to any and all information that he or she may get from a dispatch. We all carry our personal biases and experiences that can result in stereotyping certain individuals in certain environments, seeing people who look “suspicious” and hang out in dangerous, crime-ridden environments. How do you elevate yourself beyond your bias when you are told that you have to look for “the suspects”? This requires maturity, self awareness, sensitivity and ability to see a larger picture. These are skills we are not born with. These skills have to be introduced to the right people, at the police academy and honed over and over – until perfection. Instead we devote 100 hours of training to use of force.

While this sounds fine, maybe even quite good, as the exercise of sound discretion is always a welcome approach, by starting with the assertion that stop and frisk can be used “aggressively,” Haberfeld undermines her subsequent view before she gets there.

If there is an articulable reasonable suspicion, then there is a lawful basis for a stop. If not, then there isn’t. It’s not a matter of aggressive or passive, active or passive. It’s a matter of law, whether the basis for a police officer to interfere with the constitutional right to be left alone exists.

She then tosses in a word that never belongs in the legal mix, “intuition.” Cop TV shows have long promoted the view that police have that beloved “sixth sense” that allows them to know something is amiss when there is no objectively articulable basis to reach that conclusion. She perpetuates this lie by sneaking the word into her argument. It’s not true. More importantly, it’s not the law.

And just to throw a bit of a wrench into the discussion as a whole, has Haberfeld not heard of CompStat, the driving force of quotas for “250’s” (named for the form used for stops & frisks under the program) within the New York City Police Department? To call for cops to be better trained in the exercise of discretion when their assignment, promotion, review, even retention, is based entirely on CompStat numbers, where supervisors come down like a ton of bricks on the cop who doesn’t rack up 25 stops a month regardless of whether a reason exists to make stops or he finds anything as a result, reflects a complete misunderstanding of how the program works.

If there is to be any meaningful debate on how to undo the damage of millions of black and Hispanic teens stopped for no lawful reason, it has to come from people who aren’t promoting propaganda or fantasy designed to keep people angry, confused and stupid. And it would be extremely helpful for the New York Times not to provide the forum for them to do so.

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2 comments on “The Elusive Concept of Stop & Frisk”

She then tosses in a word that never belongs in the legal mix, “intuition.” Cop TV shows have long promoted the view that police have that beloved “sixth sense” that allows them to know something is amiss when there is no objectively articulable basis to reach that conclusion.

Doesn’t the phrase “On the basis of my extensive training and experience as a police officer, I knew that …” cover that “intuition” thing?

Scott H. Greenfield

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